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White Power Day, June 25: Baby Veronica and SCOTUS Decisions

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Cases involving child custody are always middle class morality plays. I am reminded of the time I had trouble getting a routine, uncontested step-parent adoption done in the county where I now reside, because one of my clients was a non-observant Jew and the other was an atheist and the judge demanded that the legally required social study be conducted by a Christian minister.

This middle class morality play is part of the reason that about a third of Indian children who fell into court-supervised custody situations used to wind up with non-Indian foster or adoptive parents. The more traditional the blood parents, the more likely this outcome, as we are by and large not monotheists or aggressive in pushing our beliefs on others.

Another part of the reason for non-Indian placements goes back to the longstanding governmental policy summarized in the remark attributed to Richard Henry Pratt, founder and superintendent of the Carlisle Indian Industrial School: “Kill the Indian in him to save the man.”

One of many screaming absurdities in the history of American Indian control law is that this policy of forced assimilation was moving along at a time when Indians were denied US citizenship and long before they ever gained the right to vote for the people who made decisions affecting their lives.

The Indian Child Welfare Act is a belated effort to redress the theft of generations of Indian children, just as the Voting Rights Act is an attempt to redress suppression of non-white votes. Both of these laws have been successful in bringing change, so the crippling of both laws on June 25, 2013 makes that the day the Supreme Court took a vigorous public stand for white power.

It’s an ongoing trope in federal Indian control law that when the SCOTUS does us harm, it offers a rationale in terms of our own good. In Adoptive Couple v. Baby Girl, the Court purported to agree with the argument of the professional adoption industry that ICWA makes Indian children less adoptable.

It’s absolutely true that ICWA makes adoption more difficult outside the tribe. The tribe must be notified. The Indian parents cannot have their rights terminated without some attempt to repair the problems short of breaking up the family. The tribe can remove the case to tribal court.

In the case Indians came to know as Baby Veronica’s Case, two very big facts got short shrift in the SCOTUS opinion.

That fact that much of the trial delay could be attributed to the Cherokee father’s deployment in Iraq rated no mention, although the delay itself was noticed.

The fact that the notification to the Cherokee Nation failed to turn up the father’s citizenship on account of misspelling his name and misstating his birth date is blown past. When the Cherokee Nation did get proper notice and intervened in the case, it was faulted for not offering tribal citizens to adopt Baby Veronica---a step the tribe had no reason to take because it had adopted the cause of the Cherokee father, and if he retained his relationship to Veronica, the tribe’s interest was satisfied.

We should not dwell on the harm to Baby Veronica. The courts did not. The question is what this case does to ICWA, and the impact runs directly against the goals of ICWA in the name of making Indian children more available for adoption.

The Court held that a father who never had physical or legal custody of a child or provided support for the child had no “Indian family” to be broken up, and therefore the procedural protections of ICWA never kicked in. If you are posted in Iraq, the only way you can be part of an “Indian family” is to send money.

Notice that the Cherokee Nation’s interests are being disregarded because of something the Cherokee father did not do.

Remember the formerly leading case on ICWA, Mississippi Choctaw Indians v. Holyfield, where the Indian parents were purposely trying to avoid application of ICWA by arranging for birth off the reservation and giving the children up for non-Indian adoption. The SCOTUS pointed out, correctly, that the purpose of ICWA was not to benefit individual Indians but rather to benefit the tribes. Justice William Brennan wrote: “These congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme is inconsistent with what Congress intended.”

What a difference a few conservative SCOTUS appointments makes! We go from Holyfield in 1989, holding that Indian parents can’t defeat ICWA on purpose, to Adoptive Couple in 2013, holding that an Indian parent can defeat ICWA by accident. For our own good, of course.

What do Indians have left when the protections of ICWA are stripped away? They are reduced to the middle class morality play, where statutes of both Oklahoma and South Carolina (homes of the Cherokee father and adoptive couple, respectively) award custody of an “illegitimate” child to the birth mother.

Over 40 percent of all American children are born to unmarried mothers. For American Indians, the figure is over 65 percent. Lots of luck, dad.

The other reason why Baby Veronica’s case pulled the teeth of ICWA in the best interest of Indians is that, had they not done so, “serious equal protection concerns” would arise.

Translation: any law that benefits Indians because they are Indian disadvantages white people and would therefore be unconstitutional. The SCOTUS did us the favor of avoiding that, leaving ICWA only wounded rather than dead.

Justice Clarence Thomas was particularly solicitous of our interests, and his concurring opinion is worthy of a separate column so I can express the proper gratitude.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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I appreciate your analysis here. Much of this is about anglo american belief in their cultural and religious supremacy over all other cultures and beliefs in the world and throughout history, the "kill the indian to save the child" theory.
As Andrea Smith might say that just as the white Logic of Genocide dictates that indian land is inherently takeable by whites, and indian daughters are inherently rapeable by whites, likewise indian children are inherently kidnapable as well.
This is not idle rhetoric because legally these actions are in fact genocide under international law.
Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as including:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Any single one of these is sufficient to be considered genocide. Kidnapping of children (b) causes serious mental harm to indian parents, and it is also )e{ the forced transfer of our children to another group. Of course the others have all been active as well.

Question.
Based on background details contained in both the South Carolina and the U.S. Supreme Court case records narrative, there is a noticeable gap in process between mid-year 2010 and July 2011, a period of time spanning more than a full year.
Why? What happened during that time and why did the court schedule its hearing that far out? Why was there no greater sense of urgency on the part of the court, to adjudicate this in a more expedient way?
September 18, 2009 Adoption proceeding filed in South Carolina.
January 2010 Dusten files motion for stay of proceedings in S.C. and custody in Oklahoma.
March 16, 2010 Appellants, with Mother joining, filed a Special Appearance and Motion to Dismiss Father's Oklahoma action on jurisdictional grounds.
March 30, 2010 Appellants amended their South Carolina pleadings to acknowledge Father's membership in the Cherokee Nation.
May 25, 2010, Father answered Appellants' amended complaint, stating he did not consent to the adoption of Baby Girl and seeking custody.
July 12, 2011 Family court set a hearing date for the case, and found separately that the ICWA applied to the case.
September 12–15, 2011 South Carolina trial
December 2011 Dusten gets custody